Petition for Writ of Certiorari — Samuel Howard, Petitioner v. Nevada

No. ______

IN THE

SUPREME COURT OF THE UNITED STATES

SAMUEL HOWARD,

Petitioner,

v.

STATE OF NEVADA

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of Nevada

PETITION FOR WRIT OF CERTIORARI

Jonah J. Horwitz*

Deborah A. Czuba

FEDERAL DEFENDER SERVICES OF IDAHO, INC.

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Jonah_Horwitz@fd.org

208-331-5530

*Counsel of Record

*CAPITAL CASE*

QUESTIONS PRESENTED

1. Whether appellate reweighing is constitutional after Hurst v. Florida, 136

S. Ct. 616 (2016).

2. Whether Hurst is retroactive.

PETITION FOR WRIT OF CERTIORARI – Page i

PARTIES TO THE PROCEEDINGS BELOW

In addition to those listed in the caption, the parties to the proceedings below

included Timothy Filson, former Warden at Ely State Prison, in Nevada, and Adam

Paul Laxalt, former Attorney General of Nevada.

RELATED PROCEEDINGS

I.

Federal Court

A. Supreme Court

1. Howard v. Nevada, No. 14-8546, cert. denied April 27, 2015

2. Howard v. Nevada, No. 92-8909, cert. denied Oct. 4, 1993

3. Howard v. Nevada, No. 86-6937, cert. denied Oct. 5, 1987

B. U.S. Court of Appeals for the Ninth Circuit

1. Howard v. Gittere, No. 19-70384, pending

2. Howard v. Baker, No. 10-99003, pending

C. U.S. District Court for the District of Nevada

1. Howard v. Gittere, No. 2:19-cv-247, pending

2. Howard v. Gittere, No. 2:93-cv-1204, pending

3. Howard v. Godinez, No. CV-N-91-196, closed March 11, 1992

4. Howard v. Whitley, No. CV-N-88-264, dismissed June 23, 1988

II.

Nevada State Court

A. Supreme Court

1. Howard v. State, No. 73223, remittitur issued Oct. 15, 2019

PETITION FOR WRIT OF CERTIORARI – Page ii

2. Howard v. State, No. 57469, remittitur issued Oct. 20, 2014

3. Howard v. State, No. 42593, remittitur issued Jan. 28, 2005

4. Howard v. State, No. 23386, remittitur issued Oct. 28, 1993

5. Howard v. State, No. 20368, remittitur issued Feb. 14, 1991

6. Howard v. State, No. 15113, remittitur issued Feb. 12, 1988

B. Clark County, Nevada District Court 1

1. Howard v. State, Nos. 81C053867; A-18-780434-W, pending

2. Howard v. State, petition denied May 15, 2017

3. Howard v. State, petition denied Nov. 5, 2010

4. State v. Howard, petition denied Oct. 21, 2003

5. State v. Howard, petition denied July 7, 1992

6. Howard v. State, petition denied April 28, 1989

1 Unless otherwise indicated, all of the listed Clark County District Court

proceedings were held exclusively in case number 81C053867.

PETITION FOR WRIT OF CERTIORARI – Page iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iv

APPENDICES................................................................................................................ v

TABLE OF AUTHORITIES ......................................................................................... vi

OPINION BELOW......................................................................................................... 1

JURISIDICTIONAL STATEMENT .............................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

STATE STATUTES INVOLVED .................................................................................. 1

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 3

I.

The Court Should Decide If Appellate Reweighing Is Still Constitutional. ...... 3

A. Hurst Raises Serious Concerns About Appellate Reweighing’s

Constitutionality. .................................................................................................... 4

B. Lower Courts Continue To Engage In Appellate Reweighing. ....................... 6

C. This Case Is A Good Vehicle For Clarifying That Appellate Reweighing Is

Impermissible. ......................................................................................................... 8

II. The Court Should Decide If Hurst Is Retroactive............................................... 8

A. There Is A Split Over Whether Hurst Is Retroactive...................................... 8

B. This Case Is A Good Vehicle For Resolving The Split. ................................... 9

III. Alternatively, The Court Should Summarily Remand. ...................................... 9

CONCLUSION............................................................................................................. 11

PETITION FOR WRIT OF CERTIORARI – Page iv

APPENDICES

APPENDIX A:

Order of the Nevada Supreme Court affirming

the denial of post-conviction relief, No. 73223,

September 20, 2019……………………………………..App.001–003

APPENDIX B:

Remittitur of the Nevada Supreme Court,

No. 73223, October 15, 2019…………………………………App.004

APPENDIX C:

Findings of Fact, Conclusions of Law, and

Order denying post-conviction relief,

District Court of Clark County, Nevada,

No. 81C053867, May 15, 2017………….…….............App.005–034

APPENDIX D:

Court Minutes and Journal Entries, District Court of

Clark County, Nevada, No. 81C053867,

April 19, 2017………………………………………….…App.035–037

APPENDIX E:

Petition for Writ of Habeas Corpus [Post-Conviction],

District Court of Clark County, Nevada,

No. 81C053867, October 5, 2016………………….…...App.038–047

APPENDIX F:

Reply in Support of Petition for Writ of Habeas Corpus

and Response to Motion to Dismiss, District Court of

Clark County, Nevada, No. 81C053867,

March 27, 2017…………………………………………..App.048–090

APPENDIX G:

Appellant’s Opening Brief, Nevada Supreme Court,

No. 73223, October 11, 2017………...…………………App.091–207

PETITION FOR WRIT OF CERTIORARI – Page v

TABLE OF AUTHORITIES

Federal Cases

Brown v. Sanders, 546 U.S. 212 (2006)……………………………………………………..4

Clemons v. Mississippi, 494 U.S. 738 (1990)……………………………………………….6

Griffith v. Kentucky, 479 U.S. 314 (1987)…………………………………………………..9

Hildwin v. Florida, 490 U.S. 638 (1989)……………………………………………………6

Hurst v. Florida, 136 S. Ct. 616 (2016)……………………………………………..i, 2, 4, 6

McKinney v. Arizona, 139 S. Ct. 2692 (2019)…………………………………………….10

Montgomery v. Louisiana, 136 S. Ct. 718 (2016)………………………………………….9

Pavatt v. Carpenter, 928 F.3d 906 (10th Cir. 2019)……………………………………….5

Pavatt v. Carpenter, 904 F.3d 1195 (10th Cir. 2018)……………………………………..5

Pavatt v. Royal, 894 F.3d 1115 (10th Cir. 2017)…………………………………………..5

Roper v. Simmons, 543 U.S. 551 (2005)…………………………………………………...11

Spaziano v. Florida, 468 U.S. 447 (1984)…………………………………………………..6

United States v. Haymond, 139 S. Ct. 2369 (2019)……………………………………...11

Federal Constitutional Provisions

U.S. Const., amend. VI………………………………………………………………………..1

U.S. Const., amend. XIV, § 1…………………………………………………………………1

Federal Statutes

28 U.S.C. § 1257………………………………………………………………………………..1

State Cases

Castillo v. State, 442 P.3d 558 (Nev. 2019)………….……………………………….3, 6, 8

Hicks v. State, --- So. 3d ----, 2019 WL 3070198 (Ala. Crim. App. 2019)……………….7

Howard v. State, No. 73223, 2019 WL 4619525 (Nev. Sept. 20, 2019)………………...1

PETITION FOR WRIT OF CERTIORARI – Page vi

Howard v. State, No. 57469, 2014 WL 3784121 (Nev. July 30, 2014)………………….2

Middleton v. State, 220 So. 3d 1152 (Fla. 2017)…………………………………………...7

Mosley v. State, 209 So. 3d 1248 (Fla. 2016)……………………………………………….8

Powell v. State, 153 A.3d 69 (Del. 2016)……………………………………………………8

Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016)…………………………………..9

State v. Hedlund, 431 P.3d 181 (Ariz. 2018)……………………………………………….6

State v. Lorraine, 120 N.E.3d 33 (Ohio Ct. App. 2018)…………………………………..9

State v. Mata, 934 N.W.2d 475 (Neb. 2019)………………………………………………..9

Tyron v. State, 423 P.3d 617 (Okla. Crim. App. 2018)……………………………………6

State Statutes

Nev. Rev. Stat. § 175.554…………………………………………………………………..1, 4

Other

Florida’s Ha’P’Orth of Tar: The Need to Revisit Caldwell, Clemons, and Profitt, 70

U. Miami L. Rev. 1118, 1148–52 (2016)…………………………………………………….5

The Death Penalty in 2019: Year End Report, The Death Penalty Information

Center (2020)………………………………………………………………………………...6, 7

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Petitioner Samuel Howard respectfully submits this petition for a writ of

certiorari to review the judgment of the Supreme Court of Nevada.

OPINION BELOW

A copy of the opinion below is attached as Appendix A, at App. 1–3, and is

available at Howard v. State, No. 73223, 2019 WL 4619525 (Nev. Sept. 20, 2019)

(per curiam).

JURISIDICTIONAL STATEMENT

On September 20, 2019, the Nevada Supreme Court issued its decision. App.

1–3. The petition is timely filed, as Justice Kagan extended the deadline for filing

to February 17, 2020. This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Sixth and Fourteenth Amendments to the United

States Constitution, which read in pertinent part:

[T]he accused shall enjoy the right to a speedy and public trial, by an

impartial jury. . . .

U.S. Const., amend. VI.

. . . nor shall any State deprive any person of life, liberty, or property,

without due process of law.

U.S. Const., amend. XIV, § 1.

STATE STATUTES INVOLVED

This petition implicates Nev. Rev. Stat. § 175.554(3), which provides: “The

jury may impose a sentence of death only if it finds at least one aggravating

PETITION FOR WRIT OF CERTIORARI – Page 1

circumstance and further finds that there are no mitigating circumstances

sufficient to outweigh the aggravating circumstance or circumstances found.”

STATEMENT OF THE CASE

Mr. Howard was convicted in 1983 of first-degree murder in Nevada state

court. App. 14. At the penalty phase of his trial, Mr. Howard was sentenced to

death on the basis of two aggravating circumstances: (1) a previous conviction for a

violent felony in New York; and (2) committing the charged murder while engaged

in the commission of robbery. App. 14–15. In 2014, the Nevada Supreme Court

invalidated the second aggravating circumstance, leaving only the first. See

Howard v. State, No. 57469, 2014 WL 3784121, at *6 (Nev. July 30, 2014). With

only the single aggravator still standing, the Court reweighed it against the

mitigating evidence presented by the defense at trial and upheld the death

sentence. See id.

The instant matter relates to Mr. Howard’s fifth application for state postconviction relief. In that application, Mr. Howard challenged the Nevada Supreme

Court’s 2014 ruling upholding the death sentence by virtue of the remaining

aggravating circumstance. App. 44–45. He attacked the ruling on the ground that

the Nevada Supreme Court improperly reweighed the mitigating circumstances

against the remaining aggravating circumstance in violation of Hurst v. Florida,

136 S. Ct. 616 (2016), which requires a jury to find all facts that permit the

imposition of a death sentence. App. 44–45.

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Granting the State’s motion to dismiss, the state district court concluded that

“Hurst does not stand for the proposition that appellate reweighing is

unconstitutional.” App. 32. On appeal, the Nevada Supreme Court rejected Mr.

Howard’s appellate-reweighing claim with reference to Castillo v. State, 442 P.3d

558 (Nev. 2019) (en banc), cert. pet. filed Feb. 3, 2020. App. 2. In Castillo, the

Nevada Supreme Court unequivocally held that appellate reweighing is still

allowed in the wake of Hurst. Specifically, the court recognized Mr. Castillo’s view

“that Hurst establishes that the practice of appellate reweighing of aggravating and

mitigating circumstances is unconstitutional.” Castillo, 442 P.3d at 561 n.2. It then

rejected Mr. Castillo’s position based on its belief that “Hurst says nothing on” the

matter and that this Court’s precedent sanctioning appellate reweighing “remains

good law.” Id. By incorporating its reasoning from Castillo below, the Nevada

Supreme Court made plain that it was relying on its conclusion that Hurst left the

practice of appellate reweighing untouched.

Mr. Howard then filed this timely certiorari petition.

REASONS FOR GRANTING THE WRIT

I.

The Court Should Decide If Appellate Reweighing Is Still

Constitutional.

Despite the concerns that Hurst creates regarding the propriety of appellate

reweighing, lower courts continue to engage in the practice. This Court should

accordingly take up the question, and the instant petition presents the perfect

chance to do so.

PETITION FOR WRIT OF CERTIORARI – Page 3

A.

Hurst Raises Serious Concerns About Appellate Reweighing’s

Constitutionality.

The reasoning of Hurst renders appellate reweighing constitutionally suspect.

Hurst nullified Florida’s capital scheme for affording judges too much say in

the sentencing process, contrary to the Sixth Amendment. In so doing, the Court

repeatedly framed its holding in terms of a jury’s constitutionally guaranteed right

to make all findings “necessary to impose the death penalty.” Hurst, 136 S. Ct. at

622; see also id. at 619, 624. 2 One determination that is indisputably “necessary to

impose a sentence of death,” in Florida, Nevada, and every other capital

jurisdiction, is that the aggravation outweighs the mitigation. See id. at 619; see

also id. at 622 (striking down the Florida statute because the “[t]he trial court alone

must find the facts . . . [t]hat sufficient aggravating circumstances exist and [t]hat

there are insufficient mitigating circumstances to outweigh the aggravating

circumstances”); Nev. Rev. Stat. § 175.554(3) (“The jury may impose a sentence of

death only if it finds at least one aggravating circumstance and further finds that

there are no mitigating circumstances sufficient to outweigh the aggravating

circumstance or circumstances found.”); see also Brown v. Sanders, 546 U.S. 212,

216–17 (2006) (reiterating that “in all capital cases the sentencer must be allowed

to weigh the” aggravation against the mitigation). The plain language of Hurst thus

obligates juries to make all requisite findings of fact not just when aggravators are

2 In this petition, unless otherwise noted, all internal quotation marks and citations

are omitted, all alterations are in original, and all emphasis is added.

PETITION FOR WRIT OF CERTIORARI – Page 4

found, but also when those aggravators are weighed against the mitigating

evidence.

By its very nature, that prohibition applies to appellate reweighing.

Judge Briscoe cogently explained why in a separate writing in Pavatt v.

Royal, 894 F.3d 1115 (10th Cir. 2017). 3 As Judge Briscoe noted, appellate

reweighing is “of questionable validity in light of . . . Hurst.” Id. at 1153. “[T]he

implications of Hurst seem clear,” Judge Briscoe continued, because appellate

reweighing “requires an appellate court to make a new and critical finding of fact,

i.e., whether the remaining valid aggravating circumstances outweigh any

mitigating circumstances,” and under Hurst, “such a factual finding can be made

only by a jury.” Id. Recent scholarship agrees with, and elaborates upon, the same

dynamic. See Craig Trocino & Chance Meyer, Hurst v. Florida’s Ha’P’Orth of Tar:

The Need to Revisit Caldwell, Clemons, and Profitt, 70 U. Miami L. Rev. 1118,

1148–52 (2016) (arguing that appellate reweighing is unconstitutional under

Hurst).

The authorities from this Court previously approving of appellate reweighing

have likewise been cast under a constitutional shadow by Hurst. Most important in

3 The Tenth Circuit granted rehearing en banc in Pavatt and vacated the opinion to

which Judge Briscoe wrote separately. See Pavatt v. Carpenter, 904 F.3d 1195 (10th

Cir. 2018). The en banc court then released an opinion that did not address the

appellate-reweighing issue. See Pavatt v. Carpenter, 928 F.3d 906 (10th Cir. 2019)

(en banc), cert. denied, --- S. Ct. ----, 2020 WL 411708 (2020). Here, Mr. Howard

relies upon Judge Briscoe’s separate opinion in the earlier decision not as precedent,

but to show that Hurst engenders substantial doubt about appellate reweighing’s

constitutional legitimacy in the minds of reasonable jurists, which is the reason that

certiorari is warranted.

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that regard is Clemons v. Mississippi, 494 U.S. 738 (1990). Although Clemons

blessed appellate reweighing in 1990, the case’s jurisprudential foundation has

eroded substantially. Specifically, Hurst expressly overruled two of the opinions

undergirding Clemons’ holding: Hildwin v. Florida, 490 U.S. 638 (1989), and

Spaziano v. Florida, 468 U.S. 447 (1984). See Clemons, 494 U.S. at 746 (citing

Hildwin and Spaziano). The language Hurst used to abrogate these cases is telling:

“Spaziano and Hildwin summarized earlier precedent to conclude that the Sixth

Amendment does not require that the specific findings authorizing the imposition of

the sentence of death be made by the jury. Their conclusion was wrong, and

irreconcilable” with later precedent. Hurst, 136 S. Ct. at 623. As observed above, it

is that very principle that forbids appellate reweighing. As a result, the precedent

upon which appellate reweighing has been built has been destabilized by Hurst.

B.

Lower Courts Continue To Engage In Appellate Reweighing.

Despite the constitutional uncertainty that Hurst has created around

appellate reweighing, state courts around the country persist in the practice,

including in three of the most active death penalty jurisdictions in the country. See,

e.g., Castillo, 442 P.3d at 561 n.2; State v. Hedlund, 431 P.3d 181, 184–85 (Ariz.

2018), cert. pet. filed (19-5247) (July 18, 2019); Tyron v. State, 423 P.3d 617, 656–57

(Okla. Crim. App. 2018), cert. denied, 139 S. Ct. 1176 (2019). 4 The phenomenon is

4 Nevada, Arizona, and Oklahoma collectively hold 242 death-row inmates.

See The

Death Penalty Information Center, The Death Penalty in 2019: Year End Report, at

Death Row By State, https://deathpenaltyinfo.org/facts-and-research/dpicreports/dpic-year-end-reports/the-death-penalty-in-2019-year-end-report

[hereinafter “DPIC 2019 Report”].

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widespread and in the absence of this Court’s intervention it will continue, resulting

in the affirmance of numerous death sentences for defendants who should instead

be able to present their cases to juries under the Sixth Amendment.

Furthermore, some state courts have, post-Hurst, invoked harmless error

analysis when aggravators are struck on appeal, which can closely resemble

reweighing. Like appellate reweighing, this kind of harmless error review is also

taking place in states with high volumes of capital litigation. See, e.g., Hicks v.

State, --- So. 3d ----, 2019 WL 3070198, at *19–24 (Ala. Crim. App. 2019) (striking an

aggravator and then finding the error harmless, under a framework that considers

the remaining aggravators in comparison to the mitigation); Middleton v. State, 220

So. 3d 1152, 1172 (Fla. 2017) (similar). 5 For the same reason that appellate

reweighing has become constitutionally suspect in the wake of Hurst, so too has this

type of harmless-error review, for both involve courts striking a new balance that

only a jury is permitted to strike. The lingering presence of harmless-error review

in this context, alongside appellate reweighing, consequently makes certiorari

review even more necessary.

5 Florida and Alabama have the second- and fourth-most death-row inmates in the

country, respectively. See DPIC 2019 Report at Death Row By State. There are a

total of 525 such inmates in the two states, which comprises roughly twenty percent

of the prisoners under sentence of death in the country. See id.

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C.

This Case Is A Good Vehicle For Clarifying That Appellate

Reweighing Is Impermissible.

Because the Nevada Supreme Court below resolved the appeal squarely on

the ground that appellate reweighing remains lawful after Hurst, the case is an

ideal vehicle for correcting that misunderstanding.

As set forth above in the statement of the case, the continuing legitimacy of

appellate reweighing was raised, argued, and decided at every stage of this case.

Most significantly, the Nevada Supreme Court adjudicated the appeal exclusively

on the ground that appellate reweighing remains appropriate in the wake of Hurst.

Specifically, the Nevada Supreme Court rejected Mr. Howard’s appellatereweighing claim with a single citation to Castillo, see App. 2, where the Nevada

Supreme Court expressly stated that Hurst did not disturb the practice of appellate

reweighing, see Castillo, 442 P.3d at 561 n.2. Since that is the conclusion that Mr.

Howard is challenging here, his case is the perfect opportunity to take up the

question.

II.

The Court Should Decide If Hurst Is Retroactive.

An equally compelling basis to grant certiorari, either instead of or in

addition to the foregoing one, is to determine whether Hurst is retroactive.

A.

There Is A Split Over Whether Hurst Is Retroactive.

There is a clear division in the lower courts regarding Hurst’s retroactivity

vel non. The Florida and Delaware Supreme Courts have both deemed the opinion

retroactive. See Mosley v. State, 209 So. 3d 1248, 1274–83 (Fla. 2016); Powell v.

State, 153 A.3d 69, 75–76 (Del. 2016). In contrast, state appellate courts in

PETITION FOR WRIT OF CERTIORARI – Page 8

Nebraska, Ohio, and Alabama have concluded that Hurst should not be given

retroactive effect. See State v. Mata, 934 N.W.2d 475, 482–83 (Neb. 2019); State v.

Lorraine, 120 N.E.3d 33, 40–41 (Ohio Ct. App. 2018), rev. denied, 114 N.E.3d 1206

(Ohio) (table), cert. den’d, 139 S. Ct. 2724 (2019); Reeves v. State, 226 So. 3d 711, 757

(Ala. Crim. App. 2016). This well-defined split calls for the Court’s resolution.

B.

This Case Is A Good Vehicle For Resolving The Split.

Mr. Howard’s petition gives the Court a clean case for settling the division in

authority over Hurst’s retroactivity. Mr. Howard’s challenge to appellate

reweighing was raised in post-conviction, long after his conviction became final. See

App. 38–47. As a consequence, he is only eligible for relief if Hurst is retroactive.

See Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016) (clarifying that retroactive

rules must be applied by state post-conviction courts); Griffith v. Kentucky, 479 U.S.

314, 322 (1987) (holding that new constitutional rules must be applied to cases

pending on direct review without any need for retroactivity analysis). To adjudicate

the case, the Court would have to determine whether Hurst is retroactive. Since

that is the question upon which there is disagreement below, the case is a strong

candidate for granting review.

III.

Alternatively, The Court Should Summarily Remand.

If full merits review of the case is not afforded, a summary remand would be

appropriate for consideration below of this Court’s forthcoming opinion in McKinney

v. Arizona, No. 18-1109. In that case, the Court has granted certiorari and heard

oral argument on a series of issues involving the current role of appellate

PETITION FOR WRIT OF CERTIORARI – Page 9

reweighing in capital proceedings. See McKinney v. Arizona, 139 S. Ct. 2692 (2019);

Cert. Pet., filed Feb. 21, 2019. Because those issues are central to the present

certiorari petition, the Court’s decision in McKinney will be highly relevant. The

Nevada courts should have an opportunity to ensure that their resolution of Mr.

Howard’s case is consistent with the latest precedent from this tribunal.

Accordingly, Mr. Howard respectfully asks the Court to hold his certiorari petition

until McKinney has been decided and to then issue a summary remand for his case

to be reconsidered in light of the opinion in that appeal.

Other petitions raising similar issues are also pending at the Court. For

instance, in Castillo v. Nevada, supra, the petition for certiorari directly targets the

constitutionality of appellate reweighing in Nevada. Mr. Castillo also referred in

his filing to a number of other Nevada cases that are expected to arrive at this

Court’s doorstop soon, concerning overlapping questions. See Cert. Pet., filed Feb. 3,

2020, at 29.

Still other petitions broach the subject of whether a judge at the trial level

can take the weighing process in capital proceedings away from the jury. See, e.g.,

Wood v. Missouri, No. 19-967. If it is unconstitutional for a trial judge instead of a

jury to handle such weighing, it is equally unconstitutional for an appellate court to

do the same. A merits decision in Wood or similar appeals would therefore

profoundly impact Mr. Howard’s case.

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Mr. Howard respectfully asks that the Court hold his petition until these

other cases are disposed of and—if any are resolved on the merits—to summarily

remand in light of that resolution.

CONCLUSION

The right to a jury trial is “one of the Constitution’s most vital protections

against arbitrary government,” United States v. Haymond, 139 S. Ct. 2369, 2373

(2019), and “the death penalty is the most severe punishment” known to the law,

Roper v. Simmons, 543 U.S. 551, 568 (2005). To protect the guarantee, appellate

courts should not be able to impose death sentences in place of juries, and the

petition for writ of certiorari should be granted.

Respectfully submitted this 11th day of February 2020.

Respectfully submitted,

/s/Jonah J. Horwitz

Jonah J. Horwitz*

Deborah A. Czuba

Capital Habeas Unit

Federal Defender Services of Idaho

702 West Idaho Street, Suite 900

Boise, Idaho 83702

Telephone: 208-331-5530

Facsimile: 208-331-5559

*Counsel of Record

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